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While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice.
They are not your lawyers.

There are a couple of filings in the Seattle Microsoft v. Motorola case to tell you about. And I will, plus I have them done as text for you.

There was a teleconference early in June, on the 5th, and the presiding judge, the Hon. James L. Robart, asked the parties to file briefs with the court "to provide an overview of what is required by the duty of good faith and fair dealing in the context of RAND licensing". So I'll show you their arguments:

So far, as far as I'm concerned, this litigation has been fought on a slanted playing field, whether consciously or not on the judge's part, where everything has ended up tilting Microsoft's way. I think Motorola's lawyers think so too, because they went to a lot more effort than did Microsoft's lawyers, as I'll show you.

Just to give you a taste,
Microsoft's filing has no Table of Authorities. Instead it opens with reminding this judge that he's already ruled in a way that favors Microsoft's interpretation of good faith and fair dealing.
Motorola lists 3 and a half pages of cases, including the recent ITC ruling granting Samsung an exclusion order against Apple on a RAND patent of Samsung's. That's a polite way of letting a judge know he's out of step when he ruled you can't get an injunction with a RAND patent.

Orin Kerr has posted the appeal brief [PDF] just filed on behalf of Andrew "Weev" Auernheimer. It is a group work, with EFF's Hanni M. Fakhoury, Marcia C. Hofmann, and Tor B. Ekeland and Mark H. Jaffe of the law firm Tor Ekeland, PC, also listed as representing the appellant. It's another hair-pulling
Computer Fraud and Abuse Act case, so I believe you're interested in knowing about it.
It's a law in desperate need of adjustment, but in the meanwhile, because it's so vague, it's being stretched beyond what the law was intended to cover by overcharging and misunderstanding, the brief argues, and vagueness can reach the level of being a violation of the Constitution.

The idea is that if you don't know where the criminal line is, how do you avoid it? And worse, if no one knows what a law means, what it ends up meaning is whatever any prosecutor anywhere arbitrarily says it means.
It's sad to read the brief, because a man is in jail for 41 months, until 2016, for surfing the web, finding a public website, and collecting information from it and sharing it. Have you ever done that?

I'm sorry this took so long, but I've finally got a dedicated page
done for all the Oracle v. Google trial transcripts. So if you
want to know what any of the witnesses had to say, you can find
it on that page. You'll also find the trial exhibits and the jury verdict and the judge's order and final judgment, as well as links to Groklaw's coverage from the courtroom. For everything else, of course you'll find it on the Oracle v. Google Timeline page.

We still need to include the transcripts as text (html), and we'll add that to the page as they are done. This seems to be a good time to do this work, as things are relatively quiet, or at least they were over the weekend. Without a dedicated page, it's hard to find the transcripts, even though they are in the Timeline, particularly because the trial was divided into two phases, copyright and patent. Same jury, same judge, the Hon. William Alsup, but separated in time.

As I was working on the page, I reviewed the transcripts from the two days of the trial when we didn't have a reporter present. As a result, we now know
exactly what happened with the contradiction between the testimony of Jonathan Schwartz and Scott McNealy.

The Hon. David Nuffer, now presiding over this farce SCO insists on playing out, ordered SCO to file a list of which of its claims, if any, it believes survived SCO's massive loss to Novell. And it did file, but IBM noticed that SCO attached to its Statement a
proposed judgment [PDF] for the judge to sign, trickily titled "Proposed Judgment Dismissing SCO's Claims Mooted by the Final Judgment in SCO v. Novell."

And 'mooted', IBM points out, is hardly the right word.

IBM calmly and cooly presents the court with an alternative
version [PDF] of a proposed judgment correcting that and other SCO errors, pointing out SCO isn't named SCO any more, for one thing, and that these claims are not *mooted* -- they were decided on their merits and it would like that wording fixed so SCO doesn't get to sue IBM over them ever again.

IBM doesn't mind if SCO dismisses Counts I-V, VIII, and SCO's copyright infringement claims, with prejudice, as SCO proposes, IBM tells the court, and it also doesn't object to SCO dismissing certain parts of Count VI with prejudice. But it absolutely does object to dismissing any claims as allegedly moot, because "they are barred under principles of issue preclusion (or collateral estoppel)." The Novell case decided certain elements of these SCO claims on the merits, IBM points out, and "SCO is precluded from relitigating them against IBM." Here's what issue preclusion means. And here's what collateral estoppel means. They both mean that SCO can't hide behind a tree and then leap out and tackle IBM again until the end of time. As in never.

And as for SCO's claim that the Novell judgment "has no bearing" on Count VII, IX and part of the Project Monterey claim, IBM disagrees and will file a summary judgment motion shortly. And that's not all.

Magistrate Judge Paul Grewall has denied Apple's motion asking for leave to add Samsung's Galaxy S4 to Apple v. Samsung II. The presiding judge already ordered the parties to streamline the case and adding it would necessitate massive discovery. Also, he noted Samsung's argument that as a very new product, the financial data needed for litigation is not yet available. However, he suggests in a footnote that if Apple believes it's being irreparably harmed by the sale of this product, Apple instead should start a new case:

Although Apple did not raise the issue, the court notes that to the extent that Apple believes it is irreparably harmed by Samsung’s sale of the Galaxy S4, a new case might actually be the better option to prevent sales as the time for a preliminary injunction in this case has long passed.

Imagine a third Apple v. Samsung litigation? The judge assumes there will be one anyway, because Apple had to drop some other products already, in the streamlining process.

Samsung wanted to amend its contentions, which the judge ruled in certain respects it can do and not in others, and to add some new products, which was denied. Samsung has 7 days to amend some contentions Samsung says are not new but Apple asserted were, in harmony with the judge's particular guidance.

And there was a Samsung motion to compel, mainly hoping to get materials from other cases Apple is or was involved in as a party. On that, the court allowed some and denied some, and it granted Samsung's request for Apple source code, including "any code that it created to allow the third-party components to interact with the software or other hardware in the accused devices."

Apple Tries to Get USTR to Undo the ITC's Injunction Against It - More FRAND Arguments ~pj

Wednesday, June 26 2013 @ 11:27 PM EDT

As you know, the ITC early in June ordered an injunction and a cease and desist order against some of Apple's products, on a complaint from Samsung that Apple was refusing to pay anything at all for a FRAND patent of Samsung's. The shock waves from that were heard throughout the patent universe. And now Apple is trying to block it from happening. Both Apple and Samsung have filed written submissions with the USTR, as The Essential Patent Blog
reports. The President of the United States can undo that ITC injunction order based on the public interest, and Apple is asking the Office of the United States Trade Representative, as the President's representative in such matters, to do exactly that:

If left standing, the ITC determination permitting Samsung to use a single FRAND-committed patent to exclude Apple products from the United States marketplace will set a dangerous precedent and would undermine U.S. foreign relations by upsetting the international consensus against FRAND abuse. Further, the order is plainly inconsistent with recently stated Administration policy and contrary to statements of the agencies charged with enforcing competition policy. The order threatens to harm consumers and slow the pace of technological innovation, and will cement the ITC as the SEP-holders litigation venue of choice: it will be dramatically easier to get extraordinary relief at the ITC than in district court.

And it will make baby Jesus cry. I'm sure. This is the company that wanted Samsung to be blocked from the market for a slide-to-unlock patent. What the above left out is that if the ITC ruling stands, it will upset Apple and Microsoft's campaign to make FRAND patents worthless, so they can wipe the floor with Android, thanks to all the valuable utility patents the two are aiming and will aim at Google, while Google has limited defenses. And that strategy was going so well, too. Now? The apple cart has indeed been upset.

Samsung's position is simply this: Apple said publicly it thinks it shouldn't have to pay *anything* for the Samsung patent, and that is why the ITC found this case to be one of reverse hold-up:

Instead, in a recent brief to the Commission, Apple publicly declared that “Apple should not have to pay any royalty at all” for a license including the ’348 patent. Apple’s Submission in Response to the Commission’s Request for Additional Written Submissions on Remedy and the Public Interest at 49 (April 3, 2013). By any definition, Apple is an unwilling licensee of Samsung’s declared essential patents.

Everyone has been lecturing the courts and the world about the dangers of FRAND hold-up by patent owners, but sometimes, Samsung points out, there comes along a company that follows a deliberate policy of refusing to pay, and when that happens, an injunction is exactly the right remedy for reverse patent hold-up, even when the patent is a standard essential patent. Besides, the affected Apple products aren't made in the USA and it's such a limited exclusion, it will have limited impact on the public, and there are plenty of other products to fill the gap, including others of Apple's.

SCO was ordered by the judge, the Hon. David Nuffer, to tell him what claims it believes survived SCO's massive loss to Novell, in order to go forward in SCO v. IBM, and it has now done so.

Thanks to the judge's order, we finally learn what SCO has in mind, and I've emphasized part of it:

The Novell judgment has no bearing on the following claims, which
therefore remain ripe for adjudication: SCO’s Unfair Competition claim
(Count VI) concerning the Project Monterey joint venture; SCO’s
Interference with Contract claim (Count VII), which (among other things)
alleges that IBM interfered with contracts pursuant to which SCO
licensed post-1995 UNIX products to third parties; and SCO’s claim for
Interference with Business Relationships (Count IX), which alleges that
IBM interfered with SCO’s market position and business relationships.

All right, SCO is saying, we don't have the copyrights. But we had contracts. The "among other things" means they have more in mind they don't wish to tell us about yet, as is SCO's wont. It's about post-1995 SCO products and Project Monterey and IBM allegedly turning folks against SCO. Like they needed to turn anyone away from SCO. When a company shoots itself in the foot by suing its own customers right and left, it tends to create an atmosphere of alarm and distrust, resulting in others putting space between them and the foot-shooter.

IBM gets to respond next, and I expect them to say that SCO has zero claims left standing. And then we'll get to IBM's counterclaims, at last. Here's a chart of all the summary judgment motions left hanging when SCO filed for bankruptcy protection.

Nathan Myhrvold Tries To Avoid a Lodsys Deposition and Spills Some Beans ~pj

Saturday, June 22 2013 @ 11:25 AM EDT

Now that we know that the FTC is interested in whether patent trolls' business practices are hurting competition and is planning to investigate, I thought I'd point out something I found interesting in a recent motion for a protective order [PDF] by Intellectual Ventures' CEO Nathan Myhrvold in a dispute with Lodsys, the patent troll trying to sue multiple companies and Apple app developers in two of the Lodsys litigations in Texas, Lodsys v. Brother International Corp. et al. and Lodsys v. Combay, Inc., et al.. The dispute is being handled separately, as Myhrvold v. Lodsys Inc et al, in Washington State, docketed as 2:13-mc-00088-RSL. The presiding judge is Robert S. Lasnik, hence the RSL in the docket line.

Myhrvold's lawyer has filed a
Declaration in Support, as well some exhibits [PDF], one of them under seal. Myhrvold's trying to avoid a deposition by Lodsys, and the battle over it has been going on since last October.

From these documents, I learned that the patents Lodsys is using to sue everyone did indeed come from Intellectual Ventures, as we had heard, but there was a middle man, fellow patent troll Webvention LLC. This isn't the first time we've seen Webvention
in the news going after multiple victims with goofy, broad-stroke patents it got from IV. Anyway, IV sold the patents Lodsys is using to Webvention first, and Webvention then sold them to Lodsys. Lodsys has some questions it would like Myhrvold to answer about all that.

He also allegedly had some conversations with Bill Gates that they'd like to ask him about, and there is an email to Gates and others at Microsoft dealing with "combinations" that they say came from Myhrvold's email account that they are interested in asking him about. Finally, there is an IV license with Microsoft that Lodsys would like more information about.

Me, too, and I hope the FTC will feel the same. A subpoena from the FTC would be harder to avoid complying with than one from Lodsys.

This one is brought by Intellectual Ventures against Motorola in Florida. Here's the complaint [PDF]. They are already suing Motorola in Delaware. Why not just add them to the Delaware case, if it needs shoring up? Maybe because this way, they get two tries at the golden ring on this merry-go-round, and if Google tries to consolidate the cases, they have to pay lawyers for that extra work, and if the effort fails, they have to pay two teams of lawyers to go to two different states to protect Motorola. Lawyers do know how to be annoying if they want to be. If the goal is to sue someone, like Google, let's just say, until they scream Uncle and pay up, they might just do so. Not that Google ever does. It has a fabulous record of success in patent defense, and they have done it repeatedly even without counterclaims, so in that sense, part of the benefit expected from using a troll to go after Google is probably lost.

And you will not believe the seven patents that are being used this time. One is for linking urls in an email. Yes. Really. Ever do that? Did you know you should be paying IV because the USPTO gave it ownership of that functionality? Actually it's less direct and IV keeps it a little bit murky, but I'll show you the details.

I want the USPTO to explain how this is even possible, that a patent could ever have issued on something like that.

And guess where IV got these patents? Not *directly* from the USPTO. I'll give you a big hint. Some of them, from what I'm seeing, are from working companies. Don't they call that privateering, when active companies outsource their patents to trolls to do their dirty work? Why yes. Yes, they do.

Can you guess one company in this picture? Someone helping Microsoft in its anticompetitive attack on Android and Linux, you say? Yes, one of the companies that seems to have transferred two patents to IV for its holy quest is Nokia, Microsoft's 'partner in crime', as I like to think of them.

I know. You are shocked, shocked to know that patents are being used anticompetitively in a court of law.

Novell applied at the end of May for audio of the oral argument before the Tenth Circuit Court of Appeals May 6th in Novell's appeal in Novell v. Microsoft, the antitrust litigation over WordPerfect:

Novell requests a copy of the oral argument recording so that it may be transcribed and referenced during the future course of Novell’s dispute with Appellee Microsoft Corp.

The court has granted the request, with an order saying both parties will be sent a copy. That isn't what Novell asked for. Microsoft didn't oppose the motion, but it didn't join it either. Novell asked: "Should the Court grant this request, the mp3 recording may be sent to Joshua I. Schiller" at Boies Schiller. The reason Novell gives for its request means, I gather, either that Novell expects to try to appeal to the US Supreme Court if it is not successful in its appeal at the Tenth Circuit; alternatively, it hopes the case will be remanded to Utah for the trial its appeal is asking for, and it wants the transcript for reference in that context. Either way, the story won't end here.